Can't A Single Bench Of High Court Issue Directions To Registry To Circulate A Judgment?

A recent verdict of a Division bench of the Madras High Court^[2] is being discussed in this case comment. It has held a single judge of the High Court, while disposing off a case, cannot give directions to the Registry or the executive - State or Union - as it amount to exercise of jurisdiction of Public Interest Litigation (PIL). It has held if a judge feels that the matter requires certain directions to be given, he has to state the same and send it to Hon'ble The Chief Justice for constituting a bench to deal with the issue or to place it before a bench dealing with PIL. The reason for arriving at this conclusion is as the Chief Justice is the Master of the Roster^[3], if a judge were to give directions, it would interfere administrative allocation of work by former.

The bench set aside a direction given by a single judge to the Registry to circulate his judgment to the Presiding officers of Motor Accidents Claims Tribunals. In that judgment, he had directed how the tribunals should deal with evidence obtained the Right to Information Act, 2005.

Curiously enough, though the writ petitioner had not filed an appeal, the Division Bench had confirmed the findings of the learned judge on the merits of the case in an appeal filed by the Registry of the High Court. It is trite that the Registry of the High Court is not a representative of the writ petitioner. If the petitioner is not aggrieved, then the Registry, which is a rank stranger to the lis, cannot be treated as an aggrieved party to challenge the matter on merits of the case.

CURSUS CURIA EST LEX CURIAE

It has been a practice of High Courts to circulate its orders, whenever the learned judges felt their judgments will be of guidance to the Executive as well as to the subordinate courts. From the time of Lord Coke, the practice of the court has been held to be law of the court^[4]. There are several examples of this practice^[5] existing across India.

A careful perusal of the orders show that whenever the learned judges of the High Court felt that the issue is of such an importance that it should be brought to the notice of all concerned, the Registry has been directed to circulate the same. There are no rules governing such directions to circulate the orders in the appellate or Original or the Writ jurisdictions of the Madras High Court. Only when rules are framed, can any party including the Registry demand compliance with the same^[6]. In the absence of rules, a judge is entitled to follow the practice of the court since a practice is the law of the court^[7].

The doctrine is not without reason. The "course of the court" is the practice of the court^[8] because where a practice exists, it is convenient, except in cases of extreme urgency and necessity, to adhere to it. Courts have held that they have to follow the practice of the court, sans rules, even though no reason can be assigned for it^[9]. Such entrenched practices stands upon principles that are founded in justice and convenience. After all, certainty in practice is a hall mark of procedure and consequently, fairness.

IS AN APPEAL MAINTAINABLE AGAINST A DIRECTION GIVEN TO A TRIBUNAL?

The Registry was not a party to the writ petition. It could not have been made a party either because the issue involved was documents requested from the police were not given to petitioner, an insurance investigator. He sought for a direction to issue the documents. This relief was denied and directions were given by the learned single judge as to how tribunals should proceed when such matters come up before it.

It is a long standing position of the Madras High Court that, leave to file an appeal by a stranger, will not be granted when the appellant could not have been made a party^[10]. When such is the case, the issue of granting leave to appeal itself is moot.

The order of the learned single judge^[11] contains a direction to the Registry to circulate the judgment to the POresiding officers of Motor Accidents Claims tribunal. It is this portion of the order that the Registry was aggrieved by. Serious doubt arises if an appeal under clause 15 of the Letters Patent is maintainable.

The High Court, by virtue of Article 227, which is wider than article 226^[12], possesses the power to give directions to the courts and tribunals subordinate to it^[13]. A tribunal, being subordinate to the High Court, a direction could be in only exercise of the powers vested in him under Article 227 of the Constitution of India. It is the duty of the High Court to appraise the tribunal about the applicable law and ensure that they apply the same to the cases before them. It is a part of the function and constitutional duty of the High Court to keep the tribunals within the bounds of their jurisdiction, lest the High Court be flooded with cases, from tribunals, on grounds of failure to exercise jurisdiction or for exceeding the jurisdiction. When the learned single judge gave a direction to the tribunals as to how to apply the law, he was in effect exercising the supervisory powers of the High Court to ensure that the tribunals apply the law properly.

Could it be termed as a direction under Article 226? Certainly Not.

This is because the Supreme Court has held that in exercise of writ jurisdiction, the High Court cannot issue writs to courts and tribunals, exercising the powers of civil court^[14]. If such be the case, then it is unlikely a letters patent appeal, that too at the instance of a third party, would be maintainable against such a direction^[15] issued in exercise of the powers vested in the High Court under Article 227 of the Constitution.

Assuming that the order is one under Article 226 and consequently, it was susceptible to a writ appeal^[16], it has to be examined whether a direction given on the judicial side can be construed as an interference with the powers of the Chief Justice as the Master of the Roster.

MASTER OF ROSTER AND JUDICIAL ADMINiSTRATION

The power of the Chief Justice as the Master of the Roster is not of recent origin. The administration of the High Court is vested with the office of the Chief Justice. This rule dates back to the time of the Charters issued by the Colonial rulers. It is trite that the Chief Justice is first amongst equals on the judicial side and has no equals on the administrative side. This position was settled by the Supreme Court as early as in 1982^[17].

To use the words of Sen J : -

"The Chief Justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court. This is a power which flows not only from the provisions contained in sub section (3) of Section 51 of the Act but inheres in him in the very nature of things"^[18]

This view has been confirmed by several verdicts^[19] of the Supreme Court.

The principles were laid down in cases, where litigants sought for

1. directions to constitute a bench or
2. not to remove part heard cases from one bench or
3. for creation of a collegium for the purpose of settling a roster.
4. Questioned the power of the Chief Justice vis a vis allocation of business of the court.

All these cases laid down the law on the powers of the Chief Justice to constitute benches. Yet, none of them went to the extent as the Division Bench did in the present case. It was the grievance of the Registry of the High Court that the direction to circulate a judgment amounts to a direction in a Public Interest Litigation !!!

A PIL requires a lis. A direction to circulate the law laid down by the court is not a matter of litigation. It only appraises the judicial officers of position of law. As seen earlier, it is the duty of the High Court to ensure that its judicial officers are proficient with law. This is also sought to be achieved by arranging lectures at the State Judicial academies. If the logic of the Registry, which found favor with the Division Bench is extended, a Director of a judicial academy, while deciding on courses to teach, could be termed as exercising the power of a public interest litigation.

The role of the Chief Justice as a master of the Roster ends with the allocation of portfolios. It is the duty of the Registry to place the cases as per the allocation. Once the lis is before a learned judge, as per the portfolio, the Judge is the authority to decide on the cases arising therein. Thereafter, no one including Hon'ble the Chief Justice, have a role because it is the constitutional duty of the judge to decide the case. Of course, in the unlikely event of a learned judge taking up a matter which is not allocated to him, the Supreme Court in Prakash's case^[20], has clarified that the Chief Justice can interfere and transfer the case to the judge to whom the jurisdiction has been allotted. The power of the Chief Justice was reiterated again and again in order to ensure judicial discipline on the portfolios.

It is not the case of the Registry that the learned single judge had "grabbed" jurisdiction which was not allotted to him by the Chief Justice. This is made clear by the Supreme Court^[21]. It held : -

"If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the court would collapse and the judicial work of the court would cease by generation of internal strife on account of hankering" (Emphasis Supplied)

To rely upon this judgment and to hold that a direction given to the Registry to circulate a judgment comes within the teeth of this judgment is to compare chalk and cheese.

To reiterate, it was not a case of a judge exceeding the portfolio allotted to him but giving a direction to Registry to circulate his judgement and that too, after taking the order of Hon'ble the Chief Justice. This can no way be compared to usurpation of "jurisdiction".

The role of the Registry ends with placing the papers before a judge in compliance with the allocation made by the Chief Justice. Thereafter, the course taken by the judge to decide the case, is not within the ambit of the Registry. In fact, in the other judgment cited by the Division Bench^[22], it permits even a private interest litigation before a single judge to deal with matters of public interest, without it being converted into a public interest litigation. Therefore, even on that score, the judgment under comment requires reconsideration.

ROLE OF THE REGISTRY

The Registry of the High Court is subordinate to the High Court on its judicial side and should always remain so. The High Court is not Janus^[23] where its administrative or judicial powers are two equals of the same entity. The Registry, being an administrative wing is bound by Article 261^[24] of the Constitution of India, to give effect to the judgment. There are series of judgments which hold the Registry has nothing to do with judicial work of a High Court^[25]. It is ministerial in character and has no say in the verdicts.

The power to issue directions is inherent in every case. It is the discretion of every judge, whether to give a direction or not. If a direction is given, then, it becomes to the duty of the executive, here the administrative or ministerial side of a High Court, to implement it^[26]. This is more so, when the Registry did not find any issue regarding the merits of the judgment, (even if it is treated as aggrieved) and neither did the division bench.

In all fairness, the Registry should have brought to notice of the Division Bench about previous directions given by single judges to Registry to circulate their judgments. In this case, though the direction was to the tribunals, the Division Bench has expanded the scope of the appeal to including directions given to state or union executive also. Sadly, the Registry did not bring to the notice of the division bench that while dealing with Idol Theft cases under Section 482 of the Cr.P.C, a learned single judge had granted a slew of directions to several authorities^[27]. The Government of Tamil Nadu had preferred an appeal to the Supreme Court of India and the same were confirmed^[28].

Therefore, with greatest of respect to the division bench, the verdict in High Court of Judicature at Madras v. Venkatesan requires immediate reconsideration.

applying Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677. Also see, Province of Bombay v. Kusaldas S. Advani & Ors, AIR 1950 SC 222